JUDGMENT Imtiyaz Murtaza, J.
1. All the abovementioned appeals arise out of the judgment and order dated 27.2.1996 passed by Sri Pandey, Special Judge, Jaunpur in S.T. No. 203 of 1984 whereby the appellants Daya Shankar, Jai Prakash Satya Prakash, Mahendra Prakash, Gyan Prakash and Sri Prakash alias Babban are convicted under Sections 148, 302/149 and 307/149 I.P.C. and sentenced to undergo R.I. for one year Section 148 I.P.C., 3 years R.I. under Section 307/149 I.P.C. and imprisonment for life and a fine of Rs. 10,000/- each under Section 302/149 I.P.C. Appellant Girja Shankar is convicted under Section 147 I.P.C. and sentenced to R.I. for 6 months, under Section 307/149 I.P.C. and sentenced to undergo R.I. for 3 years and sentenced to life imprisonment and a fine of Rs. 10,1000/- under Section 307/149 I.P.C. In case of default of payment of fine, the appellants are further sentenced to undergo imprisonment for two years. Learned Special Judge acquitted Uma. Shankar and Rama Shankar under Section 148, 307/149 I.P.C. Chandra Bhan, Maya Shankar and Rakesh Prakash were acquitted under Section 147, 302/149 and 307/149 I.P.C. Aslam was acquitted under Section 147, 302/149 , 307/149 and 120B I.P.C.
2. Brief facts of the case, mentioned in the first information report lodged by Chiranjivi Rai at P.S. Jalalpur, district Jaunpur, are that the informant is resident of village Lakhamipur, P.S. Jalalpur, district Jaunpur. There is enmity in the village with regard to election of Pradhan. In the night of 24/25.3.1984 one Hari Shankar Rai of his village was murdered. He, his younger brother Mewa Prasad Rai and one Ram Sewak Kurmi were made accused and they were released on bail. On account of the enmity of the said murder at about 1.00 O'Clock in the night of 7/8.5.1984 Uma Shankar Rai, Rama Shankar Rai, Girja Shankar Rai, Daya Shankar Rai, Maya Shankar Rai, Satya Prakash alias Udai, Rakesh Prakash Rai, Gyan Prakash alias Munna, Jai Prakash Rai alias Lallan, Sri Prakash Rai alias Bachchan, Mahendra Prakash Singh alias Lala, Chandra Bhan Singh and Jawahir Singh, relative of Uma Shankar Rai, resident of village Seer Karahiya, P.S. Lanka, Varanasi, Virendra Singh, resident of village Bhikharipur, P.S. Mirzamurad, district Varanasi and 4 - 5 persons came at his door. At that time he was sleeping in front of his door and ladies were also sleeping there. A lantern was burning at the door and electric light was at the pumping set of Sita Ram. He woke up and saw that Jawahir Singh and Virendra Singh armed with gun, Daya Shankar Rai, Satya Prakash Rai, Mahendra Prakash Singh and Jai Prakash Rai armed with country made pistol and rest of the accused armed with Lathis and Ballam came and started exhorting and challenging that they have to take revenue of the murder and they started firing from guns and country made pistols and caused injuries to Mewa Prasad Rai, Manoj Kumar Rai, Smt. Ram Kali alias Kangana, Manbhawati, his relatives Atma Rai and Akshaibar Singh. He ran towards jackfruit tree and set on fire the Sarpat. The accused has started searching for him and when they could not find him, they said that they have to settle score with sureties and went to the house of Sita Ram Rai and they caused firearm injuries to Dulari, Basmati, Manraji, Piyari, Dhan Devi and Sanjay Kumar alias Mammu, Thakur Prasad Rai, Shashi Kala and Raj Kumar. Thereafter the accused went towards the house of Ram Sewak Kurmi but he had already left his house. They could not find out any one in his house and thereafter accused reached at the house of Uma Shankar Rai and Started abusing the informant. Atma Ram Rai, Akshaibar Singh, Ram Kali alias Kangana, Dulari, Basmati, Piyari, Manraji, Dhandevi and Sanjay Kumar alias Mammu died on the spot. Mewa Prasad Rai, Manoj Kumar Rai, Manbhawati, Thakur Prasad Rai, Shashikala and Raj Kumar had received injuries and their condition was serious. After the incident accused persons ran away from there. The incident was witnessed by Udai Bhan Rai, Gulab Rai, Keshav Prasad Rai and Ram Sewak Kurmi in the light of torches, lantern, burning Sarpat and also in the electric light. The report was registered at the police station of Jalalpur on 8.5.1984 at 2.30 A.M. The distance of the police station from the place of occurrence is 5 Km. After the registration of the F.I.R. Sri Yogendra Singh, S.H.O. P.S. Jalalapur started investigation of the case. He reached at the place of occurrence alongwith Sub Inspector Lallu Ram Bhaskar. He prepared the inquest report of Akshaibar alias Reeshu (Ext. Ka. 81). He prepared photo lash, seal lash and letter for post-mortem, challan lash, From No. 33 (Ext. Ka. 82-87). He also prepared the inquest memo of Dhan Devi (Ext. Ka. 88). He also prepared the photo lash, seal lash, challan lash and letter for post-mortem and form No. 33 (Ext. Ka. 89 to 94). He also prepared the inquest memo of Smt. Manraji (Ext. Ka. 95). Photo lash, seal lash, challan lash, letter for post-mortem, Form No. 33 are Ext. Ka. 96 to 101. Dead bodies were dispatched for the post-mortem through constables Atma Ram Pandey and Haneef Khan. He deputed Sub Inspectors Sankatha Prasad and Lallu Ram Bhaskar for the preparation of inquest memos of other deceased. Thereafter he recorded the statement of informant Chiranjive Rai. He arrested Girja Shankar, Uma Shankar and Rakesh Prakash. He recorded the statements of Kamla Rai and Udai Bhan. He also prepared site map (Exts. Ka. 103 to 110). On 9.5.1984 he recorded the statements of witnesses Keshav Rai, Ram Sewak Kurmi, Gulab Rai and Smt. Mithilesh. On 10.5.1984 he recorded the statements of Thakur Prasad Rai and injured Shashi Kala. He recorded the statement of Sankata and Ram Raj. After the completion of the investigation he submitted charge-sheet against the accused persons.
3. Dr. D.N. Tiwari had conducted the post-mortem on the dead bodies of Manoj Kumar, Akshaibar, Mewa Prasad Rai, Manraji and Smt. Dhan Devi and noted following ante-mortem injuries :
4. Ante Mortem injuries on the dead body of Manoj Kumar :
1. Multiple small lacerated wound in area of 17 x 12 cm. at right side chest just below right nipple size 2 cm. non probed in diameter with blackening present.
2. Lacerated wound size 12 x 10 cm. humorous fractured blackening present. Vessels, Nerves cut Invervence wound, 8 cm. above elbow right bone deep
3. Lacerated wound 3 cm. x 2.5 at right thigh outer side in middle.
5. In the opinion of doctor, death was caused due to shock and haemorrhage as a result of the ante mortem injuries.
6. Ante mortem injuries on the dead body of Achhaiber :
1. Lacerated wound at right index finger, finger absent, size 3 cm. 2.5 cm. through and through.
2. Lacerated 4 cm x 4 cm viscera deep at abdomen on 5 cm down to umbilicus.
3. Lacerated 4 cm x 4 cm at abdomen, 10 cm down to injury No. 2 Blackening present.
4. Lacerated 6 cm x 3 cm at thigh in front present (upper part).
5. Lacerated 3.5 cm x 3.5 cm at left scrotum testicle outer.
6. Lacerated 4 cm x 4 cm at left perineum.
7. In the opinion of doctor, the death was caused due to shock and haemorrhage as a result of ante mortem injury.
8. Ante mortem injuries on the dead body of Mewa Prasad Rai :
1. Lacerated wound 6 cm x 6 cm at right chest at nipple and Viscera deep.
2. Lacerated 4 cm x 4 cm at left side chest, Blackening present, Skin deep.
9. In the opinion of doctor, the death was caused due to shock and haemorrhage as a result of ante mortem injury.
1. Lacerated 5 cm x 4 cm x viscera deep at right shoulder.
Blackening present.
10. In the opinion of doctor, the death was caused due to shock and haemorrhage as a result of ante mortem injury.
11. Ante mortem injuries on the dead body of Dhan Devi :
1. Lacerated wound size 5 cm x 5 cm x viscera deep just below Left nipple.
12. In the opinion of doctor, the death was caused due to shock and haemorrhage as a result of ante mortem injury.
13. Dr. C.K. Gupta had conducted the post-mortem on the dead body of Atma Ram Rai, Sanjai Kumar, Smt. Kangana Devi, Smt. Dulari, Smt. Ram Piyari and Smt. Basmati which are as follows :
Ante mortem injuries on the dead body of Atma Rai :
1. Gun shot wound - 2.5 cm x 2.5 cm over the right, internal to post fold of axilla. Blackening present in are of 8 the wound. No exit wound noted. Direction of wound in towards the left side chest. Margins of the wound are smooth.
2. Gun shot wound 6 cm x 5 cm over the right lower back. Right iliac crest. Blackening present all over the wound direction Anteriorly towards left. Margins of the wound and edges are inwards. No exit wound noted.
14. In the opinion of doctor, cause of death was due to excessive haemorrhage and shock as a result of ante mortem injuries to vital organs.
15. Ante mortem injuries on the dead body of Sanjai Kumar Rai :
1. Gun shot wound 4.5 cm x 4 cm over the right side chest 2 cm below. Right sterno clavicular joint and 2 cm away from the right sternum border blackening present all over the wound in area of 7 cm x 6 cm all around the margins and edges are smooth & inwards, direction of the wound in and downwards towards left. No exit wound noted.
2. Abrasion 2.5 cm x 2 cm over the outer aspect of left wrist Joint. Blackening present.
16. In the opinion of doctor, the death was caused due to ante mortem gun shot injury to vital organs resulting excessive bleeding and shock.
17. Ante mortem injuries on the dead body of Kangna Devi :
1. Gun shot wound 8 cm x 5.5 cm over the left shoulder Region 3 cm internal to left shoulder up. Margins of wound are lacerated edges inwards. Direction of wound inwards, obliquely towards right side chest. No exit wound noted.
18. In the opinion of doctor, the death was caused due to ante mortem injuries to vital organs resulting excessive haemorrhage and shock.
19. Ante mortem injuries on the dead body of Dulari :
1. Gun shot wound-12 cm x 6 cm over the left chin and Left side upper chest. Blackening present all over the wound. Wound was lacerated margins all over. No exit wound noted. Direction of the wound- inwards downwards.
2. Lacerated wound - 7 cm x 5 cm over front of left hand Including lefts wrist joint, muscles are lacerated all over blackening present all over.
20. In the opinion of doctor, the death was caused due to ante mortem in jury over the organs resulting excessive bleeding and shock.
21. Ante mortem injuries on the dead body of Ram Piyaree :
1. Gun shot wound- 6.5 cm x 5 cm over the right lower Black 3 cm internal to right iliac crest. Margins of the wound are lacerated and edged inwards, Blackening present all over wound. No exit wound noted. Direction of the wound inwards upwards towards the left.
22. In the opinion of doctor, the death was caused due to ante mortem gun shot injury to vital organs of the body resulting excessive haemorrhage and shock.
23. Ante mortem injuries on the dead body of Basmati :
1. Lacerated wound 13 cm over the back of Chest outer aspect including right upper abdomen. Obliquely placed, the post fold of axilla. Margins of the wounds are lacerated. Chest lacerated. Ribs are broken. Blackening present all over the wound. No exit wound noted.
24. In the opinion of doctor, the death was caused due to ante mortem gun shot injury to vital organs of the body resulting excessive haemorrhage and shock.
25. Ante mortem injuries on the dead body of Manoj Kumar :
1. Firearm wound of entrance 3 cm x 2 cm x bone deep on outer aspect of right arm 17 cm. below the top of right shoulder. Bleeding from wound present.
2. Firearm wound of 12 cm x 3 cm x muscle deep connecting to injury No. 1 on middle part of right arm 18 cm below the right shoulder. Bleeding present under lying bone fracture. Advised for x-ray.
3. Firearm wound of entrance multiple in number each side 0.5 cm x .5 cm x muscle deep on right side chest 5 cm below the right nipple in area of 5 cm x 4 cm bleeding present.
26. In the opinion of doctor, the death was caused by firearm and referred to x-ray. The duration of injuries is fresh within of one fourth day old.
27. Ante mortem injuries on the dead body of Smt. Manbhawati :
1. Firearm wound of entrance 4 cm x 2 cm x muscle deep on palmer surface of right hand. Extenshly from root of right thumb to upward bleeding present.
2. Firearm wound of entrance 2 cm x 1 cm muscle deep on palmer surface of right hand 4 cm away the injury No. 1.
3. Firearm wound of entrance of 10 cm x 2 cm x muscle deep on abdomen 4 cm above the ambilicus horizontal in position. Bleeding from wound present. Margin irregular and torned. No smoky and charring present.
28. In the opinion of doctor, all injuries are caused by firearm. All injuries are advised for x-ray. Duration of injuries was fresh within one fourth day old.
29. Ante mortem injuries on the dead body of Smt. Mithilesh :
1. Abrasion 2 cm x 1 cm on lower part of right ear.
2. Firearm wound of entrance size 0.5 cm x 0.5 cm x muscle deep on distal part of right Ist toe.
3. Firearm wound of entrance .5 cm x .5 cm x deep on right Ist toe 2 cm away the injury No. 1
4. Firearm would of entrance .5 cm x .5 cm x muscle deep on left sole .7 cm away the root of left great toe.
5. Firearm would of entrance. 5 cm x .5 cm x muscle deep on right great toe distal part.
30. In the opinion of doctor, all injuries are simple and caused by firearm. Duration of injuries within one fourth day old.
Dr. S.P. Ram, medically examined Thakur Prasad, Smt. Shashi Kala and Raj Kumar on 8.5.1984 at 7.00 A.M., 7.30 A.M. and 8.00 A.M. respectively. He found the following ante mortem injuries:
31. Ante mortem injuries on the person of Thakur Prasad:
1. Incised wound 2 cm x .5 cm x skin deep on the palmer aspect of the middle of the right foot.
2. Firearm injuries in area 10 cm x 5 cm on the lateral aspect of the root of neck. Kept U.O. adv x-ray of the part. Ref. to surgeon for expert opinion. No blackening and tattooing was present.
3. Contusion 13 cm x 6 cm on the upper part of the right scapular region.
32. In the opinion of doctor, injury No. 1 was caused by sharp object which is simple and fresh in nature. Injury No. 3 was caused by blunt object which is simple and fresh in nature. Injury No. 2 was caused by firearm and kept under observation. Advised x-ray.
33. Ante mortem injuries on the persons of Smt. Shashi Kala:
1. Lacerated wound 13 cm x 10 cm x bone deep on the joint of right upper arm, leg including right elbow joint and kept under observation. Advised x-ray of part.
2. Lacerated would 10 cm x 3 cm x bone deep on the palmer aspect of the left hand. Little finger amputated from the based of the band, thumb of the left hand hanging frontier middle portion by skin flap. Advised x-ray of left hand.
3. Multiple lacerated wound in area of 5 cm x 5 cm on the right breat S.C. Advised for x-ray.
4. Firearm injuries 4 in number size .3 cm x .3 cm x skin deep on the lateral front of the right leg 2 cm below the right knee joint in area of 9 cm x 2 cm. No blackening, No tattooing present.
34. Injuries No. 1, 2 and 3 are kept under observation. Injury No. 4 was caused by firearm and rest simple and fresh in nature Duration is fresh.
35. Ante mortem injuries on the person of Raj Kumar:
1. Multiple lacerated wound in area 7 cm x 7 cm on the left side head just above the left ear. Kept under observation. Advised x-ray of skull and firearm injuries.
2. Abrasion .5 cm x .5 cm on the left side neck 4 cm. blow the left ear caused by firearm.
3. Firearm injury in area 9 cm. x 6 cm. on the anterior aspect of the right leg for 7 cm below the right knee joint. Kept under observation. X-ray was advised of right leg.
4. Firearm injury 2 in number in area 3 cm x 1 cm on the medical aspect of the middle of the right foot 3 cm. below the right medical malleolos. Kept under observation. X-ray was advised.
5. Abrasion 3 cm x 1 cm on the medial aspect of the right thigh 2 cm above the right knee joint.
In the opinion of doctor all the injuries except No. 4 were caused by firearm and kept under observation. The duration of the injuries is fresh in nature. Injury No. 4 caused by friction simple. The duration was fresh in nature.
36. Vishnu Prasad Gupta is pharmacist who had prepared the x-ray reports of Smt. Manbhawati, Smt. Shashi Kala, Thakur Prasad and Raj Kumar. Dr. R.L. Gupta given his opinion after x-ray examination.
37. After the submission of the charge sheet, case was committed to the court of Sessions and in order to prove its case, the prosecution had examined 13 witnesses. Four court witnesses were also examined in the case and defence had examined 9 defence witnesses. Learned Sessions Judge after considering the evidence on record acquitted the accused Uma Shankar, Rama Shankar, Maya Shankar, Chandra Bhan, Rakesh Prasad and Aslam and convicted Girja Shankar, Sri Prakash alias Babban, Daya Shakar, Gyan Prakash, Jai Prakash Satya Prakash and Mahendra Prakash and sentenced them as aforesaid. Hence these appeals.
38. P.W. 1, Chiranjivi Rai, the informant, stated that the occurrence took place in the night of 7/8th May, 1984 at about 1.00 A.M. At the time of occurrence he was sleeping in front of his house after taking meal. Atma Rai and Akshaibar were also sleeping next to him. His nephew Manoj Kumar Rai was also sleeping in front of the door of Sahan. In the house his brother Mewa Ram, his wife Smt. Manbhawati Devi and children were sleeping in a Khaprail room. His mother was also sleeping in the passage. A lantern was burning at the door. An electric bulb was also lighting at the pumping set of Sita Ram. He heard noises of some persons and he woke up. He aw Jawahir Singh and Virendra Singh armed with guns, Daya Shankar, Satya Prakash, Mahendra Prakash and Jai Prakash, armed with country made pistols, Uma Shankar, Rama Shankar, Sri Prakash and Gyan Prakash, armed with Ballam, Girja Shankar, Maya Shankar, Rakesh Prakash and Chandrabhan, armed with Lathis and 4 - 5 unknown persons came and challenging them to take the revenge of the murder and they started firing from guns and country made pistols. Mewa Prasad Rai, Manoj Kumar Rai, Ramkali Devi alias Kangana, Manbhawati, Atma Rai, Akshaibar Singh sustained firearm injuries. He ran under the jackfruit tree and set on fire the Sarpat which imitated sufficient light. Ram Sewak Kurmi, Udai Bhan Rai and Gulab Rai reached there by flashing their torches and witnessed the occurrence. Atma Rai and Akshabibar Singh went inside the room but the assailants went there and caused firearm injuries to them. The assailants were shouting his name and were searching for him then they said that they have to settle score with sureties and kill them. Thereafter they went towards the house of Sita Ram Rai. One accused scuffled with Thakur Prasad. Gyan Prakash alias Munna assaulted him with Ballam which hit him on the leg. In the meanwhile Jawahir Singh fired on Thakur Prasad. Thereafter the assailants entered into the house of Thakur Prasad and started firing. Thereafter the assailants went towards the house of Ram Sewak Kurmi but they could not find him there. Thereafter the assailants ran away. He saw that his mother Ramkali Devi alias Kangana, his relatives Atma Ram and Akshaibar Singh had died on the spot after receiving the firearm injuries. Mewa Prasad Rai, his wife Smt. Manbhawati, Manoj Kumar Rai were seriously injured and blood was oozing. He went to the house of Sita Ram Rai and saw that Sanjai Kumar alias Mammu, Smt. Manraji and Smt. Dulari were lying dead on the cot and in the house Smt. Basmati, Smt. Ram Pyari, Smt. Dhan Devi were lying dead on the cot. Shashi Kala, Mithlesh Kumar and Raj Kumar had received firearm injuries. He prepared the report and went to the police station alongwith Udai Bhan Rai and Shiv Pujan to the police station and lodged the first information report (Ext. Ka. 1). His statement was recorded by the investigating officer.
39. P.W. 2, Thakur Prasad Rai, stated that his house is situated at a short distance from the house of the informant, Chiranjivi Rai. His uncle is Sita Ram Rai and they lived in one house. On the date of occurrence, he was sleeping in front of the house nearing the pumping set on the northern side. His son Sanjai Kumar Rai alias Mammu, Smt. Manraji Devi, Smt. Dulari were sleeping in his portion and inside the house Smt. Dhan Devi, Smt. Ram Pyari, Smt. Bansmati, Smt. Shashikala, Smt. Mithlesh Rai and Raj Kumar were sleeping. At about 1.00 A.M. in the house he heard some cries and firearm shots from the house of Chiranjivi Rai. He saw 18 - 19 persons near the house of Chiranjivi Rai and Sarpat was burning. Gulab Rai and Udai Bhan Raj went towards the house of Chiranjivi Rai by flashing their torches. A lantern was also burning at the door of the house of Chiranjivi Rai. An electric bulb was also lighting and there was sufficient light. He had recognized the accused persons. Jawahir Singh and Virendra Singh armed with guns, Daya Shankar, Jai Prakash, Satya Prakash and Mahendra Prakash armed with country made pistols, Uma Shankar, Ram Shankar, Sri Prakash and Gyan Prakash, armed with Ballam, Chandra Bhan, Maya Shankar, Girja Shankar and Rakesh Prakash, armed with Lathis alongwith 4 - 5 unknown person who were also armed with Lathis. One of the unknown person had scuffled with him, and Gyan Prakash alias Munna had assaulted him with Ballam. Thereafter Jawahir Singh had fired on him which hit him on the right shoulder. It is further stated that when he tried to run away, Girja Shankar had given him a Lathi blow and thereafter he ran towards the western side of his house and saw that accused persons had entered into the Ahata of his house and fired on his aunt, Aaji and son. Fires were made by Daya Shankar, Satya Prakash and Jai Prakash. In the meantime ladies of the house had opened the door and started abusing the assailants by name. In the meantime, Sri Prakash alias Babban said that ladies have identified him, therefore, they should be killed and all the accused persons entered into his house. Thereafter he ran away towards village Meghpur. Some persons had took him near the shop of Nandlal. A jeep was arrived there which was driven by Aslam. One person who had scuffled with him was also sitting in the jeep. Gulab Rai had reached there and thereafter he went to his house alongwith Gulab Rai and saw that his Aaji Smt. Ram Dulari his aunt Smt. Manraji, son Sanjai Kumar lying dead on the cot. His mother Ram Pyari, wife Smt. Dhan Devi, and Aaji Smt. Basmati were lying dead inside the house. His son Raj Kumar, his Bhayahoo Smt. Mithlesh, sister Smt. Shashi Kala were injured. He alongwith four injured were admitted in the hospital.
40. P.W. 3, Gulab Rai, stated that he is younger brother of Thakur Prasad Rai, P.W. 2. On the date of occurrence, at about 1.00 A.M. he was sleeping in front of his door near the pumping set. His brother Thakur Prasad Rai and his uncle Udai Bhan Rai were also sleeping there. One electric light was lighting at the pumping set and one at bamboo pole. He heard cries from the house of Chiranjivi Rai and also heard shots fire. He alongwith his uncle Udai Bhan Rai ran towards the house of Chiranjivi Rai with flashing torches where a lantern was also burning. He was 18 - 19 persons and recognised some of them namely Jawahir Singh and Virendra Singh were armed with gun, Daya Shankar, Jai Prakash, Satya Prakash and Mahendra Prakash armed with country made pistol, Uma Shakar, Rama Shankar, Sri Prakash and Gyan Prakash were armed with Ballam and Chandra Bhan, Girja Shankar, Maya Shankar and Rakesh Prakash were armed with Lathi and there were 4 - 5 unknown persons who were also armed with Lathis. All the accused were exhorting to take the revenge of the murder. The accused who were armed with guns, country made pistols, opened fire in which Atma Rai, Akshaibar Rai, Manoj Kumar, Mewa Rai, Smt. Manbhawati and Smt. Ramkali Devi alias Kangana Devi had received injuries. Chiranjivi Rai had set on fire Sarpat which imitated light. The accused persons were abusing Chiranjivi Rai and his brother. Thereafter they came to his house to settle score with sureties. One of the accused had scuffled with Thakur Prasad Rai. Gyan Prakash had assaulted Thakur Prasad with Ballam. Jawahir Singh had fired from his gun which hit his brother Thakur Prasad who ran away towards southern - western side. The accused persons entered into the Ahata of his house. Ladies of the house started abusing the accused and on the exhortation of Sri Prakash alias Babban accused had started firing upon the ladies and thereafter they entered into the house. Thereafter the accused persons went towards the house of Ram Sewak Kurmi and again they came at the door of Uma Shankar and they went towards western side. After the accused persons had left the place, he alongwith his uncle came in the Ahata and saw that Smt. Manraji Devi, Smt. Dulari Devi and Sanjai Kumar were lying dead and inside the house he saw that Smt. Basmati Devi, Smt. Ram Pyari Devi and Smt. Dhan Devi were lying dead. Smt. Mithlesh, Smt. Shashikala and Raj Kumar had received firearm injuries and blood were oozing. He came at the door of Chiranjivi Rai and saw that Akshaibar Singh, Atma Rai and Smt. Kangana Devi were lying dead. Mewa Rai, Smt. Manbhawati Devi and Manoj Kumar had received firearm injuries. He searched for his brother Thakur Prasad who met him near the shop of Nandlal. He carried his brother to the village on a cycle.
41. P.W. 4 is Dr. D.N. Tiwari. On 9.5.1984 he was posted as Senior Medical Officer, District Hospital, Jaunpur. He had conducted the post-mortems on the dead body of Manoj Kumar at 8.30 A.M., on the dead body of Akshaibar Rai on the same day at 9.30 A.M., post-mortem on the dead body of Mewa Prasad on the same day at 10.30 A.M., post-mortem on the dead body of Smt. Manraji on the same day at 11.30 A.M. and on the dead body of Smt. Dhan Devi at 12.30 P.M. Post-mortem reports of the deceased are already mentioned in the earlier part of the judgment.
42. P.W. 5 is Dr. C.K. Gupta. On 9.5.1984 he was posted as Senior Medical Officer, Sadar Hospital, Jaunpur. He had conducted the post-mortems on the dead body of Atma Rai at 8.30 A.M., on the dead body of Sanjay Kumar Rai at 9.30 A.M., on the dead body of Smt. Kangana at 10.30 A.M. and on the dead body of Smt. Dulari at 11.30. He had also conducted the post mortem on the dead body of Ram Pyari Devi at 12.30 P.M. and on the dead body of Smt. Bansmati at 1.15 P.M. Post-mortem reports are already mentioned in the earlier part of the judgment.
43. P.W. 6 is Dr. Hari Shankar Singh. He had medically examined Manoj Kumar, Smt. Manbhawati Devi and Smt. Mithlesh and medical reports are already mentioned in earlier part of the judgment.
44. P.W. 7 is Dr. S.P. Ram. On 8.5.1984 he was posted as emergency medical officer, district Hospital, Jaunpur. He had examined Thakur Prasad Rai at 7.00 A.M. He had also medically examined Smt. Shashi Kala at 7.30 A.M. At 8.00 A.M. he had medically examined Raj Kumar. Medical examination reports are already mentioned in the earlier part of the judgment.
45. P.W. 8 is Vishnu Prasad Gupta. He was posted in T.B. Hospital, Jaunpur as dark room assistant. He had proved the x-ray reports of Smt. Manbhawati, Smt. Shashi Kala, Thakur Prasad Rai and Raj Kumar.
46. P.W. 9, Dr. R.L. Gupta, is radiologist in Sadar Hospital, Jaunpur on 8.5.1984. He had proved the x-ray reports of Smt. Manbhawati, Smt. Shashi Kala, Thakur Prasad Rai and Raj Kumar. He had given his opinion on the basis of x-ray plates which are Exts. Ka. 19 to Ka. 22.
47. P.W. 10 is Lallu Ram Bhaskar, Sub Inspector. On 8.5.1984 he was posted as Sub Inspector, P.S. Jalalpur, district Jaunpur. He had prepared the inquest reports of Smt. Kangana alias Ram Kali and other relevant papers for the post-mortem examination. Inquest report of Smt. Kangana alias Ram Kali is Ext. Ka. 23 and other relevant papers are Exts. Ka. 24 to Ka. 29 He had also prepared and the inquest report and other relevant papers for post-mortem of Smt. Dulari Devi which are Exts. Ka. 30 to Ka. 36. He had also prepared the inquest report and other relevant papers for post-mortem of Smt. Ram Pyari which are Exts. Ka. 37 to Ka. 43.
48. P.W. 11 is Sankatha Prasad Singh. On 8.5.1984 he was posted as Sub Inspector, P.S. Jalalpur, Jaunpur. He had prepared the inquest report and other relevant papers for post-mortem of Atma Rai which are Exts. Ka. 44 to Ka. 50. He had also prepared the inquest report and other relevant papers for postmortem of Sanjay Kumar which are Exts. Ka. 51 to Ka. 57. He had also prepared the inquest report of the dead body of Smt. Bansmati. Inquest report of Smt. Bansmati is Exts. Ka. 58 and he had also prepared the other relevant papers for postmortem examination which are Exts. Ka. 59 to Ka. 64. He had also prepared the inquest report of the dead body of Manoj Kumar which is Ext. Ka. 65. He had also prepared the other relevant papers for post-mortem which are Exts. Ka. 66 to Ka. 71. He had further prepared the inquest report of the dead body of Mewa Prasad. Inquest report of Mewa Prasad is Ext. Ka. 72 and other relevant papers for post-mortem are Exts. Ka. 73 to Ka. 78.
49. P.W. 12 is Yogendra Singh. On 8.5.1984 he was posted as S.H.O., P.S. Jalalpur, district Jaunpur. He stated that Satya Narayan Tiwari was posted alongwith him as Head Constable. He had prepared the check report of this case (Ext. Ka. 79). He had also prepared the general diary entry (Ext. Ka. 80). As soon as he received the information about the offence he had sent S.I. Lallu Ram Bhaskar alongwith other police constable to the place of occurrence. After the registration of the case he had reached at the place of occurrence alongwith constables and the informant of the case. He immediately could not prepare the inquest report because of paucity of light. In the morning he alongwith Sub Inspector Lallu Ram Bhaskar and S.I. Sankatha Prasad prepared the inquest reports. He had prepared the inquest report of Akshaibar alias Reeshu which is Ext. Ka. 81. He had also prepared the other relevant papers for postmortem which are Exts. Ka. 82 to Ka. 87. He had also prepared the inquest report of Smt. Dhan Devi (Ext. Ka. 88) and he had also prepared the other relevant papers for post-mortem which are Exts. Ka. 89 to Ka. 94. He had also prepared the inquest report of Smt. Manraji Devi (Ext. Ka. 95) and he had also prepared the other relevant papers for postmortem which are Exts. Ka. 96 to Ka. 101. He had dispatched the dead bodies for the post-mortem examination through Constable Atma Ram Pandey and Constable Haneef Khan. After the preparation of the inquest reports, he had recorded the statements of Satalu Tarkeshwar and the informant Chiranjivi Rai. Thereafter he had arrested Girja Shankar, Uma Shankar and Rakesh Prakash. Thereafter he had recorded the statements of Kamla Rai and Udai Bhan. He had also prepared the site map on the pointing out of comnplainant and other witnesses. Site map is Ext. Ka. He had also prepared the recovery memos of blood stained and plain earth and recovered the empty cartridges, torches and lantern. Recovery memos are Exts. Ka. 103 to Ka. 110. On 9.5.1984 he recorded the statement of Keshav Rai, Ram Sewak Kurmi, Gulab Rai and Smt. Mihlesh. On 10.5.1984 he recorded the statements of Thakur Prasad Rai and Shashi Kala. On 28.5.1984 he had submitted the chargesheet against Girja Shankar, Rama Shankar, Daya Shankar, Maya Shankar, Rakesh Prakash, Satya Prakash, Gyan Prakash, Mahendra Prakash, Uma Shankar, Jai Prakash, Sri Prakash, Chandra Bhan, Jawahir and Virendra. Chargesheets are Exts. Ka. 142 and Ka. 143.
50. P.W.13 is Constable Atma Ram Pandey. He stated that in the month of May, 1984 he was posted as Constable, P.S. Jalalpur, district Jaunpur. He had escorted the dead bodies for post-mortem examination. Constable Mohd. Haneef Khan was also with him.
51. C.W.1 is Vyas Muni Misra. He was then posted in C.B.C.I.D., Varanasi. He has checked up the investigation of Case Crime No. 57 with regard to false implication of Jawahir Singh in this case. Thereafter the case was transferred to C.I.D. for investigation. He had submitted a report to the court and further investigation was permitted by the court on 30.4.1986. He had recorded the statements of the accused. He had received an gun and cartridges of Bhrugunath Rai. He had also received the gun of Jawahir Singh which was deposited in a gun house in Varanasi. He had also enquired about Bhrugunath Rai and he was on medical leave from 16.4.1984 to 17.4.1984. He had dispatched the guns of Bhrugunath Rai, Durendra Rai and Jawahir Rai alongwith the empty cartridges recovered from the place of occurrence for examination. The expert report dated 15.10.1986 was received and it is mentioned that 6 cartridges out of 7 recovered from the place of occurrence were fired from the gun of Bhrugunath Rai. He had investigated the case up till 1.2.1987.
52. C.W.2, Om Prakash Mani Tripathi, is ballistic expert. He stated that on 5.8.1986 he had received 5 sealed bundles of case property of Case Crime No. 57 and he had submitted the report that these cartridges were fired from S.B.B.L. Gun No. F.I. 10075-1979.
53. C.W.3, Akshaibar Nath Dubey, stated that in the year 1988 he was posted as Dy. S.P., C.B.C.I.D., U.P., Lucknow. He stated that Case Crime No. 57 of 1984 was investigated by Inspector Satya Narayan Singh. He stated that on the direction of the Superintendent of Police, C.B.C.I.D., the investigation was given to Satya Narayan Singh and then it was handed over to S.P.N. Tripathi and thereafter he had investigated this case and final parch No. 11 dated 20.8.1988 was forwarded by him (Ext. C-4).
54. C.W. 4 is Shailendra Singh. On 27.7.1992 he was posted as record keeper in the police office, Jaunpur. He stated that G.D. entry of the year 1984 of P.S. Jalalpur was weeded out.
55. The case of the defence is of denial and false implication and the defence has examined 9 witnesses.
56. D.W. 1 is Constable Shyam Lal Arya. He stated that there is a mention of Case Crime No. 58 of 1984 under Section 395 I.P.C. The informant of the case is Swami Nath. The investigation of the case was handed over to C.B.C.I.D., Varanasi.
57. D.W. 2 is Constable Rishideo Yadav. He stated that in Case Crime No. 227 of 1984 under Section 395/397 I.P.C. Lale Bhar, Prabhu Nath Rai, Keshave Pahalwan, Roop Narayan Bhatt and Kallu Bhar cam into light as accused.
58. D.W. 3 is Constable Ram Bali Yadav. He stated that Case Crime No. 66 of 1984 under Sections 395/397 I.P.C. was registered on the report of Shyam Bahadur Singh. The case was investigated by S.O. Shivdhari Singh and names of 9 accused persons came into light during investigation and Bhrugunath Rai was also implicated in this case. During investigation he was killed in a police encounter in the right 14/15.10.1984. Another accused Roop Narayan was also involved in this case whose name was also came into light during investigation. He was also killed in a police encounter. Another Case Crime No. 75/84 under Sections 395/397 I.P.C. was registered on the report of Nar Narayan Pandey. Subsequently this was registered on the report of Nar Narayan Pandey. Subsequently this case was converted into under Section 396 I.P.C. The names of 9 accused persons came into light during investigation out of which Bhrugunath Rai and Raj Narayan Rai were also one of them.
59. D.W. 4 is Constable Raghubir Giri. He stated that Case Crime No. 58/84 was registered on the report of Sita Ram Singh. The case was investigated by S.O. Om Prakash Shahi. The names of Bhrugunath Rai, Roop Narayan Rai, Kallu Bhar and Udham Singh came into light during investigation. In case crime No. 108/84 Roop Narayan, Kallu Bhar, Sri Bhar were main accused who were in the gang of Bhrugunath Rai.
60. D.W. 5 is Con. Uma Kant Misra. He stated that in Case Crime No. 57 of 1984 (State v. Girja Shankar and Ors.) special report of the case was received in the court of C.J.M., Jaunpur on 26.5.1984.
61. D.W. 6 is con. Rajesh Kumar Tiwari. He stated that Case Crime No. 106 of 1984 under Sections 395/397 was registered on 15.10.1984. This report was registered against un-named accused persons. During investigation 4 accused persons namely Bhrugu Nath Rai, Roop Narayan, Bihari and Ramji alias Mistri came into light. He stated that Bhrugu Nath Rai was killed on 15.10.1984 in a police encounter and a case crime No. 107 of 1984 under Sections 147/148/149/307/171/412 I.P.C. and 27 Arms Act was registered.
62. D.W. 7 is Con. Awadh Bihari Yadav. He had got the file No. C.B. 739/84 (new No. 260/87). This case relates to the check-up report about false implication of Jawahir Singh. The final report in the case was submitted on 20.8.1988.
63. D.W. 8 is Smt. Kusum Rai. In the year 1983-84 she was posted as S.D.M., Sadar, Varanasi. She stated that Hasan Khan was the driver of her official jeep. She does not recognise Mohd. Aslam and stated that Mohd. Aslam was never her driver.
64. D.W. 9 is Zaheeruddin. He stated that Aslam accused is his son. Police of P.S. Jalalpur had arrested his son at 9.30 A.M. on 20.5.1984. He had sent telegrams to the D.I.G., Varanasi and S.O. of P.S. Jabalpur. He had also sent a registered letter to D.I.G., Varanasi on 4.6.1984. Copies of the applications are Exts. Kha. 3 Kha. 4. Receipts of the telegram are Exts. Kha. 5 and Kha. 6.
65. Learned Sessions Judge considered the evidence on record, convicted the appellants, as aforesaid and acquitted Uma Shankar, Rama Shankar, Maya Shankar, Rakesh Prakash, Chandra Bhan and Aslam.
66. We have heard the counsel for the appellants, learned A.G.A. for that State, learned counsel for the respondents and perused the entire record.
67. Learned counsel for the appellants has challenged the findings of learned Sessions Judge on several grounds. First submission of learned counsel for the appellants is that the motive as alleged by the prosecution does not fit in the prosecution case. First motive as alleged by the prosecution with regard to the enmity between the parties is due to election of Pradhan. The contrition of learned counsel for the appellants is that one of the respondent in government appeal has won the election and after winning the election they did not do any act or anything against the informant or their relatives. The election was contested by one Solai Ram But nothing was done against him, therefore, this motive is false. The motive as alleged in the first information report lodged by Chiranjivi Rai shows that in the year 1982 there was a election for the post of Pradhan in the village which was contested between Solai Ram and Uma Shankar, respondent No. 1, in government appeal. The informant and others were supporters of Solai Ram. Uma Shankar has won the election. Another motive as alleged by P.W.1 Chiranjivi Rai is that in the year 1984 Hari Shankar Rai, brother of Uma Shankar, was murdered and he alongwith his younger brother Mewa Ram and Ram Sewak Kurmi were implicated as accused in that case and they were released on bail only 3 - 4 days prior to the occurrence and the revenge of Hari Shankar Rais murder was the immediate motive for the crime.
68. It is further submitted by the learned counsel for the appellants that if the murder of Hari Shankar Rai was the immediate motive then informant would not have escaped easily. We have considered the submission of the counsel for the appellants and after considering the evidence on record we are of the view that murder of Hari Shankar was the immediate motive of the crime. Merely because the informant did not receive any injury, it could not be said that he was not the target of the assailants. In the first information report which was promptly lodged indicates that the assailants were searching him and when they failed to find out him they said that they have to settle score with the sureties. They also went to the house of Ram Sewak Kurmi but he had already left his house and reached nearby him. The assailants were also abusing and threatening to kill him also. The statement of P.W. 2 Thakur Prasad Rai also indicates that the assailants had firstly been seen near the house of Chiranjivi Rai. The statement of P.W. 3 also indicates that he had heard shrieks from the house of Chiranjivi Rai and they were also abusing Chiranjivi Rai and his brother and when they could not find out Chiranjivi Rai they said that they have to settle score with his sureties. The assailants had also gone to the house of Ram Sewak Kurmi and thereafter they again were abusing Chiranjivi Rai. This statement of the informant with regard to the motive is supported by other witnesses. Another submission of the counsel for the appellants is that the motive is not sufficient for the crime. Whether this motive is sufficient for an offence of this magnitude or not, it is difficult to lay down hard and fast rule as to how and in what manner a person would react and to achieve his motive could go to what extent in the commission of crime under a particular circumstance. It is not possible to measure up the extent of his feelings, sentiments and desire as to what compel him to commit a particular crime. There may be a person who under frustration and on mere trifling domestic matters take decision to commit such serious crime while others may approach it with cool mind and though more dispassionately before taking any hazardous and serious steps. It all depends as to how a person reacts in given circumstance and then he alone who best knows his intention and motive to commit a crime and the extent thereof. In this case motive is alleged by the informant in the first information report which is also corroborated by other witnesses and it cannot be said that there was no motive or insufficient motive on the part of the accused to commit this offence.
69. Learned counsel for the appellants submitted that the first information report is ante-timed and prepared after consultation and deliberation. He further submitted that the evidence on record shows that the writing of the F.I.R. by the informant is not proved. Learned counsel for the appellants pointed out that the statement of P.W. 1 shows that he stated that F.I.R. is in his writing and seen by and again he admitted that in the first information report there is some difference in writing in his name mentioned in the bracket and he cannot tell whether Ext. Ka. 1 is in his writing or not. We have considered the submission of learned counsel for the appellants and perused the statement of P.W. 1. The submission of learned counsel for the appellants has no force. The statement of P.W. 1 Chiranjivi Rai indicates that the report was written by him and he had lodged the report at the police station. He had gone to the police station alongwith Udai Bhan Rai and Shiv Pujan. He had further stated that he had prepared the F.I.R. at his house and he can also write the F.I.R. again. He had some confusion about his name mentioned in the bracket. The statement of the informant recorded by the investigating officer under Section 161 Cr.P.C. fully corroborates the version of the F.I.R. The statement of the informant is corroborated by G.D. entry (Ext. Ka. 80) also. The statement of this witness was recorded after about 5 years of the occurrence and in case there are some minor contradictions with regard to lodging of the F.I.R., that may be possible because of failure of memory due to lapse of the time. In this case the occurrence took place around 1.00 A.M. in the night and report is lodged at 2.30 A.M. The prompt lodging of the F.I.R. is also proved by the G.D. entry and the investigation also started promptly so it cannot be said that the first information is ante-timed or the F.I.R. is not in the writing of the informant. Learned counsel for the appellants submits that if the F.I.R. was in existence at the time of the inquest, the same should have been sent alongwith post-mortem papers. In this case there are eleven deceased and if first information report is not sent alongwith the inquest report no adverse inference can be drawn that F.I.R. was not in existence at the time of preparation of inquest reports. The evidence on record clearly suggests that the report was registered at the alleged time by the prosecution.
70. Learned counsel for the appellants further submitted that the special report in this case was not sent to the higher authorities immediately. We have considered the submission of the counsel and perused the evidence on record. The evidence on record shows that special report was dispatched to the higher authorities. The testimony of P.W. 12 shows that higher authorities were also informed about the occurrence. It is also relevant to mention that the higher officers namely, D.M. S.S. Pant and C.O. reached at the place of occurrence at 11 a.m. Learned counsel for the appellants submitted that D.W. 5, Con. Uma Kant Misra, stated the chik F.I.R. of case crime No. 57 of 1984 was received in the court of Sessions on 26.5.1984. The submission of learned counsel for the appellants is that in case the F.I.R. was prepared at the alleged time then there was no occasion for not dispatching the F.I.R. to the C.J.M. concerned and this indicates that the F.I.R. was not in existence at the alleged time. We have considered the submission of learned counsel for the appellants. The statement of C.W. 4, Shailendra Singh shows that original record of the case was weeded out. The order of Circle Officer indicates that the report was sent to the Chief judicial Magistrate. The order of sending the report to Chief Judicial Magistrate. The order of sending the report to Chief Judicial Magistrate is mentioned which indicates that the report was sent on 11.5.1984. The delay in sending the report to the concerned Magistrate is of the officer of the Circle Officer and on this basis alone it cannot be said that the F.I.R. was not in existence. It is also to be noted that the appellants Girja Shankar, Daya Shankar and Rakesh Prakash were arrested on the date of occurrence and they were produced on 9.5.1984 in the court for remand. This clearly indicates that the F.I.R. was already in existence and it was produced before the Magistrate concerned for the remand of accused. P.W. 12 S.I. Yogendra Singh stated that the special report was dispatched on 8.5.1984. In the case of Balram Singh and Anr. v. State of Punjab reported in 2004 SCC (Crl.) 149. Honble Apex Court has held at any rate, while considering the complaint of the appellants in regard to the delay in the F.I.R. reaching the jurisdictional magistrate. We will have to also bear in mind the credit worthiness of the ocular evidence adduced by the prosecution and if we find that such ocular evidence is worthy of acceptance the delay in registering the complaint or sending the same to the jurisdictional magistrate by itself would not in any manner weaker the prosecution case.
71. Learned counsel for the appellants further submitted that at the time of preparation of the inquest on the dead bodies of the deceased the F.I.R. was not in existence otherwise relevant entries of the F.I.R. should have been mentioned in the inquest report. In several inquest reports crime number is not mentioned and the F.I.R. was also not sent alongwith the inquest reports for conducting the post-mortem. Merely on the ground that the crime number is not mentioned in the report and the F.I.R. was not sent alongwith inquest reports, it cannot be said that the F.I.R. is ante-timed. In this case there were several deceased and there was urgency for dispatching the dead bodies for the post-mortem and in case the F.I.R. was not sent alongwith the inquest reports, it cannot be said that the F.I.R. was not in existence at the alleged time. It is a settled position of law that where the prosecution case is fully established by the medical evidence any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief.
72. The testimonies of the eyewitnesses are challenged on the ground that the informant is inimical, partisan and related witness. Presence of P.W. 1 is also challenged on the ground that he did not received any injury in the occurrence as according to his own statement he was main target of the assailants. Learned counsel for the appellants also challenged that his testimony indicates that he remained few steps from the assailants. He had set on fire the Sarpat and he had also flashed his torch but even then he was not assaulted by the assailants and he did not receive any injury. The testimony of a witness cannot be rejected solely on the ground that he is inimical or partisan. The evidence of the witness is to be considered from the point of view of trustworthiness and as to whether it finds confidence in the mind of court to accept and that the question of credibility and reliability of a witness has to be decided with reference to the way, he faired in the cross examination and the nature of impression created in the mind of the court. There is no such universal rule as to warrant rejection of the evidence of a witness merely because he was related to or interested in either side. In such cases if the presence of such a witness at the time of occurrence is proved or considered to be natural and the evidence tendered by such witness is found in the light of the surrounding circumstances and probabilities of the case to be true, it can provide a good and sound basis for conviction of the accused. If this shows that there is enmity and the witnesses are close relatives, the court has a duty to scrutinize their evidence with great care, cautious and circumspection. The testimony of the informant cannot be rejected solely on the ground that he was inimical, interested and partisan and he did not receive any injury. A close scrutiny of the evidence of P.W. 1 shows that he is a truthful witness and his testimony inspires confidence. The Sessions Judge rightly relied upon his testimony. The submission of learned counsel for the appellants that the testimony of P.W. 1 should not be relied upon is rejected.
73. Learned counsel for the appellants further submitted that the evidence of the witnesses can not be relied up on because on their testimony learned Sessions Judge has acquitted 6 accused persons. We have considered the submission of learned counsel for the appellants. It is well settled by the catena of decisions of the Apex Court that the testimony of a witness cannot be rejected on the ground that the court has acquitted some of the accused persons. It is always open to a court to differentiate the accused who had been acquitted from those who are convicted. The court has to apply in each case as to what extent the evidence is worthy of acceptance and merely because in some respects the court considers the same insufficient for placing reliance on the testimony of the witnesses. It does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care.
74. Learned counsel for the appellants vehemently argued that the alleged crime was committed by one Bhrigu Nath Rai who had a gang and involved in several cases of dacoity. He had enmity with Thakur Prasad, P.W. 2 with regard to construction of Dalan and a civil suit was also filed by the parties and according to learned counsel for the appellants, the house of Thakur Prasad was the main target which is evident from the fact that most of the dead bodies in the house of Thakur Prasad were found on the bed. This is indicative of the fact that the house of Thakur Prasad was firstly attacked and thereafter the assailants had looted the house of Chiranjivi Rai, P.W. 1. It is further submitted that the gun of Bhrugu Nath Rai was used in the crime. Learned counsel for the appellants has drawn our attention to the testimony of C.W. 1, Vyas Muni Mishra. It is further submitted that on the alleged dated of occurrence a dacoity was committed in the area and case crime No. 58 of 1984 under Section 395 and 397 I.P.C. was registered at the police station. We have considered the submission of learned counsel for the appellants. The testimony of the witnesses is consistent with regard to the motive of the offence. In the first information report which was promptly lodged at the police station it is mentioned that main motive of the crime is murder of one Hari Shankar Rai. It cannot be said that main target of the assailants was the house of Thakur Prasad. It is also evident from the evidence that it was not a case of dacoity as nothing is looted in the crime. It has also come in evidence that the assailants were searching for Chiranjivi Rai. As regards the evidence of C.W. 1, Vyas Muni Mishra is concerned, learned Sessions Judge has considered the submissions in detail and rightly rejected the same. The statement of C.W. 1, Vyas Muni Mishra shows that he was not authorised to investigate the case. Learned Sessions Judge has rightly pointed out that there is no order on the record to authorise C.W. 1, Vyas Muni Mishra, to investigate the case. On the other hand one of the accused Jawahir Singh had moved an application about his false implication in the case and there was an order for checking-up the investigation and on the basis of this application he had moved an application for further investigation of the case. So far as the involvement of the gun of Bhrigu Nath Rai is concerned, it has come in evidence that Bhrigu Nath Rai was killed in an encounter and his gun was deposited in the Maalkhana. It is not clear whether on the alleged time of occurrence, Bhrigu Nath Rai was in possession of the said gun or not. C.W. 1, Vyas Muni Mishra, admitted in his evidence that he had obtained cartridges from the Maalkhana in sealed condition and since the seal was not legible, therefore, he had affixed another seal on the earlier seal. Similarly the gun which was obtained from the Maalkhana was not sent in original seal. He had broken the seal and again affixed his own seal. The ballistic expert opinion (Ext. Kha. 56) does not indicate that the over of the cartridges, which were received, had two seals. This clearly indicates that C.W. 1, Vyas Muni Mishra, had broken the seal and again affixed another seal on the cover. Similarly the evidence of C.W. 2, O.P.N. Tripathi, indicates that there is error in the seals on the cover of the packets. Learned Sessions Judge considered all the contradictions and manipulations in the evidence by C.W. 1, Vyas Muni Mishra and rightly rejected the same and we are of the opinion that learned Sessions Judge was justified in rejecting the testimony of C.W. 1, Vyas Muni Mishra, and in our opinion no reliance can be placed on his testimony. There is nothing on record to indicate that Bhrigu Nath Rai was instrumental in the crime. The argument of learned counsel for the appellants has no force and is rejected.
75. We have carefully considered the testimonies of P.W. 1 and P.W. 2 and in our opinion the presence of these two witnesses is natural and they have described the prosecution case and they were subjected to lengthy cross-examination and noting could be elicited there from to discredit their testimonies with respect to the appellants. In our opinion, learned Sessions Judge has rightly convicted the appellants and sentenced them as aforesaid.
76. In Government Appeal No. 1139 of 1996, the State has challenged the acquittal of Uma Shankar, Rama Shankar, Maya Shankar, Prakash, Chandra Bhan and Aslam. Learned Sessions Judge acquitted Aslam on the ground that except P.W. 2, no other witnesses has named him. The statement of P.W. 2, suggests that after the occurrence he went to village Meghpur where he met with Sankatha Prasad and Ram Raj Kurmi and others who took him towards their village. In meantime one jeep was coming from the side of Jalalpur. He saw that Aslam was driving the jeep alongwith a person who had scuffled with him. He told Aslam that they are not his men and they are public men. Apart from this statement there is no evidence on record against Aslam. Even this statement does not show any involvement of Aslam in the occurrence. The other respondents namely Uma Shankar, Rama Shankar, Maya Shankar, Rakesh Prakash and Chandra Bhan are concerned, according to the first information report, Uma Shankar and Rama Shankar are alleged to be armed with Ballam. Chandra Bhan, Maya Shankar and Rakesh Prakash are alleged to be armed with Larthi. The evidence on record does not indicate any other act on the part of these respondents nor there is any averment that they had helped or instigated other accused persons. These respondents are also residents of the same village. Mere presence in the village in the night can be there in a natural manner also. Learned Sessions Judge on these grounds acquitted the respondents.
77. The Apex Court in catena of decisions had held that there is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted.
78. In our view the reasons recorded by the trial court in acquitting the respondents cannot be said to be perverse. Therefore, the government appeal is devoid of merit and is hereby dismissed.
79. In view of the discussions made above the appeals are decided as under:
(i) Criminal Appeal No. 465 of 1996 Girja Shankar and Anr. v. State.
80. The appeal is dismissed. C.J.M., Jaunpur, therefore, is directed to take the appellants Girja Shankar and Sri Prakash alias Babban into custody forthwith on receipt of a copy of this judgement and remand them to judicial custody for saving out the sentences as awarded by the trial court and affirmed by us.
81. A report to this effect be also submitted to this court.
(ii) Criminal Appeal No. 466 of 1996 Daya Shankar and Ors. v. State of U.P.
82. The appeal is dismissed. The appellants Daya Shankar, Jai Prakash, Satya Prakash, Mahendra Prakash and Gyan Prakash are in jail. They shall be kept there to serve out the sentences as awarded by the trial court and affirmed by us.
83. A report to this effect be also submitted to this Court.
(iii) Government Appeal No. 1139 of 1996 State of U.P. v. Uma Shankar and Ors.
84. The Government Appeal is dismissed. The judgment of the lower court is affirmed by us.